Wood v. Moss, 134 S.Ct. 2056 (reversing 9th Circuit)

Although the Supreme Court decided this case in May, 2014, the recent November 2014 elections remind us the Presidential election remains only 2 years away, and  events similar to those in Wood v. Moss, which occurred at the time of President Bush’s election, may recur.

President Bush was campaigning for re election in Oregon and scheduled to spend the night in a small town.  As he walked through the streets accompanied by Secret Service Agents, two groups followed him.  One group was challenging the President for re election, and another group supporting him. Secret Service Agents were cooperating with local police for crowd control and trying to keep the distance between the two groups and the President roughly the same.  At the last minute, the President changed his plans and entered a restaurant.  The Secret Service Agents re positioned the two groups in their distance from the President.

The plaintiffs alleged a First Amendment violation of “viewpoint discrimination,” contending the Agents discriminated against them because their location was disabling them from seeing the President, as distinct from the supporting groups. Incredibly, the 9th Circuit agreed, not only on the viewpoint discrimination issue but also denied the agents qualified immunity allegedly having violated  “clearly established” federal law.

A unanimous Supreme Court reversed, holding that the Agents could not necessarily equalize the distance between plaintiff’s group and the supporting group, particularly when the President changed his route without notifying them As to the qualified immunity argument,  the Justices knew of no law “clearly established” under the circumstances and unanimously reversed this absurd 9th Circuit opinion.


U.S. v. Apel, 134 S.Ct.1144 (2014) reversing (9th Circuit

Ninth Circuit reversed again.  Although defendant Apel was decided by the Supreme Court in February, 2014, and the remand issued immediately, the 9th Circuit did not get around to finally deciding the case until September, 2014. Even then the panel had to amend its opinion for reasons unclear.  The Supreme Court had basically reversed the 9th Circuit opinion and all the panel had to do was affirm the district court judgment against Apel. /wich they did in one paragraph.  U.S. v. Apel, 767 F.3d 800 (9th Cir. 2014).

The case was factually uncontested. The 9th Circuit had held federal statute 18 U.S.C. 1382 (prohibiting civilians from entering a section of a military base) inapplicable to Apel who had been repeatedly informed his conduct (throwing blood at a military sign and walking on prohibited areas) was unacceptable. The Supreme Court merely held military property is under the jurisdiction of the commander of the base and he was entitled to prevent people from committing misconduct. The Supreme Court dismissed the argument that the military had allowed an easement for civilian traffic qualified as limited federal jurisdiction.  Unanimously reversed.

Ryan v. Wood, 2014 WL 3600362 (U.S.) reversing Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014)

The 9thCircuit has used every conceivable device to reverse state court death penalty decisions.  When unable to find any legal error on collateral review, the panel invokes “ineffective assistance. of counsel.”  The Supreme Court decision in Martinez v. Ryan permitting ineffective assistance challenges to post conviction counsel offered the 9th Circuit another opportunity for reversal.  But Wood v. Ryan, a 2-1 decision, exceeded all expectations in any death penalty case.

A state of Arizona jury found Wood guilty of first degree murder and sentenced him to death.  After all the customary delay incurred by the 9th Circuit on federal habeas, the panel ran out of excuses. The Arizona judge signed Wood’s death warrant, and the State scheduled an execution date.  Wood filed a petition seeking a stay of execution citing First Amendment grounds.   Yes, free speech, freedom of religion, free press and assembly forbade execution without a hearing.  According to defense counsel, Wood was entitled to know what drugs the state intended to use. The court granted the stay!

The dissenting opinion characterizes this argument as ” novel.” No, it is not novel.   There are far better denigrating words to describe this absurd tactic.  It took the Supreme Court 24 hours to vacate this complete departure from reason.  Worse yet, it adds to the 9th Circuit reversal record now at an all time high.

In succession, another 9th Circuit decision was reversed by the Supreme Court decided even before the new term began in October.   And on the opening day of the new term the Supreme Court reversed the 9th Circuit again in a per curiam opinion criticizing the appellate court for “time and again” refusing to fellow precedent. Then, one week later, the Supreme Court granted two more certs. from the 9th Circuit.

Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014)


Another death penalty case decided by 9th Circuit citing the Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), a case Justice Scalia predicted would add to the chaos of federal courts of appeal.  Clabourne is an example of that foresight in this  1982 conviction. Martinez permits an inmate to allege ineffective assistance of counsel on post conviction proceedings if the state disallows this defense on appeal.

As usual, the facts are brutal and warrant the death penalty.  Clabourne and two of his friends invited a woman to their house to serve drinks.  Upon her arrival, Clabourne raped the woman, stabbed her, and then strangled her.  An autopsy revealed numerous puncture wounds on the body of the victim.  In addition to several witnesses who offered confirming testimony implicating Clabourne, the prosecution introduced a complete confession to a deputy sheriff.  The jury voted the death penalty.

The Arizona Supreme Court reversed the sentencing on grounds of ineffective trial counsel and remanded for resentencing. The judge sentenced the death penalty again and the state supreme court affirmed. At a federal habeas proceeding the district court denied the Clabourne petition alleging ineffective representation of counsel during remand for resentencing for failure to present additional medical evidence and not objecting to the confession (Miranda) introduced at the original trial. Clabourne appealed to the 9th Circuit.

After conceding that a previous 9th Circuit opinion (Deitrich v. Ryan) was inconclusive under Martinez, the panel rambles on about what standards should be used for the Martinez case under an ineffective counsel Strickland claim.  The panel finally decides to remand this 1982 case again after discussing the Miranda issue.  The law on Miranda had changed after the original trial and the panel held the resentencing was a new trial and the decision should be made under the new Supreme Court case.

Comment: Justice Scalia was right. Martinez will make a shambles of federal corpus already in place at the 9th Circuit.  Resentencing is not a trial.  it is only the penalty phase.  This case will remain in the court forever.


George v. Edholm, 752 F.3d 1206 (9th Cir. 2014)

Search &Seizure: The facts in this case are disturbing because of the body part searched, and therefore the discussion is brief. Police officers arrested George, and when they took him to a hospital for a strip search they observed a bag containing white powder resembling cocaine emerging from his rectum   Concealing a bag in the rectum is a common practice among drug addicts and dealers. Based on George’s conduct, an issue arose whether he was experiencing a possible epileptic seizure, but this is a customary diversion tactic among drug users, and police do not ordinarily believe this ruse.  Eventually the doctor at the hospital examined George and used a forceps to remove the bag containing cocaine. The doctor testified a rupture of the bag would result in death.

According to the author of the 9th Circuit opinion, who wrote an extensive discussion of the testimony in depositions and discovery (a civil rights suit, not a criminal prosecution) as though he were cross examining the officers and the doctor, he found some discrepancies. (he called them “backtracking”) and that was enough to deny defense motions for summary judgment.  This author, who has never tried a criminal case, and does not realize officers cannot remember every detail of an arrest, found the anal search by the doctor non consentual and unreasonable under the Fourth Amendment.

The author ignores the possibility of a death –  inducing rupture of the cocaine and informs the doctor and the police how to do their job: do nothing and wait a couple days until the addict moves his bowels; or dies. Characterizing rectal searches as violative of the Fourth Amendment, the author says that in the absence of consent, just wait and see whether the suspect ruptures the bag and dies.

Note: this is the same judge who has rarely voted for a death penalty case and a dissenting judge in Henry v. Ryan, 2014  WL 4440435- an unrelated case now 28 years old. The procedural posture of Henry is preposterous.


Dariano v. Morgan Hill Unified School Dist., 767 F.3d 764 (9th Cir 2014

In the Morgan Hill case, during a Cinco de Maya observance day, several students arrived at school with American flags imprinted on their shirts.  Mexican students confronted them and demanded to know why Mexican colors could not be worn, and alleged the students were racists.  Apparently there was some other friction among students but no disruption or physical altercations occurred.

Informed of the disturbance, the principal called in the flag wearing students and told them to remove the shirts or turn them inside out.  The students refused and were sent home. Their parents filed a lawsuit alleging civil rights claims. In an amended opinion, the 9th Circuit panel rejected the litigation on all grounds and denied a rehearing.  A rehearing en banc was also denied.  Only three judges dissented from an en banc hearing.

The principal was obviously concerned because the campus had been the scene of Mexican gang fights.  But no Mexican student was reprimanded for threatening students and no punishment levied.  The students causing the disturbance were free do so. The solution: cancel any Cinco de  Maya days.

The 9th Circuit panel cited the seminal case of Tinker v. Des Moines Independent Community School District.  Students were allowed the practice of shirt wearing slogans as long as no disruption occurred or was fomented.  The panel cited Confederate flag cases holding the incitement was indigenous to slavery and disallowed this attire. These cases hardly compare to wearing the American flag.

The courts in other cases have used the “heckler” veto when onlookers elect to shout down the speaker.  This conduct compares equally to Morgan Hill  when Mexican students threatened the flag wearers who allegedly angered them.  The dissenting judges cite these cases to the indifference of the panel and judges denying a rehearing.

Cert Time.

Note: During the war in Iraq the State of California placed an American flag on a freeway overpass.  Later, someone also placed a flag on the overpass complaining about U.S. intervention.  State personnel removed the non American flag and, unsurprisingly, were sued by those who sought the right to fly the removed flag.  As a result of a 9th Circuit decision, the State had to remove the American flag.The American flag had to be removed, said the 9th Circuit panel, unless other flags were allowed.  “Viewpoint discrimination” said the panel. The AG did not seek cert.

In tracking the 9th Circuit for the last five years it is obvious that a liberal ideology permeates their opinions. Could students wear St. Patrick shirts; Christopher Columbus shirts; Jesus Christ shirts? As the dissent points out, why did the principal call in the students wearing American flags on their shirts instead of those who were threatening them or demanding Mexican flags? The hecklers won. Apparently the American flag is meaningless in the 9th Circuit.

Thornton v. Brown, 757 F.3d 834 (9th Cir. 2014)

“Today, a panel of our Court [9th Circuit] disregards ‘the strong considerations of comity’ between federal courts and the States, grasping power for itself where it is difficult to imagine that  . . . a State has a stronger interest; ” (citing  Preiser v. Rodriguez, 411 U.S. 475 (1973). In this quote written by a judge in the Thornton dissenting opinion, he adds that “the majority frustrates the State’s sovereign power to punish offenders under federal habeas corpus.” What is he talking about?
This decision is not the first time the 9th Circuit has usurped the power of state courts to manage criminal cases.  Repeatedly reversing decisions of state supreme courts by avoiding the Congressionally approved Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. 2254), the 9th Circuit has worked havoc on a system of federalism designed to narrow federal court authority in reviewing state cases rather than expanding it.
The facts of this case:  An inmate of a California prison, convicted under sex violation laws, challenged statutorily mandated parole conditions requiring him to wear a device monitoring his location during the length of parole. Instead of filing habeas corpus corpus, he filed a complaint under 42 U.S.C. 1983, the misused federal civil rights law, to enjoin the parole condition. In a dissertation on the federal law of remedies, the court panel majority discussed under what conditions an inmate could invoke 1983 instead of habeas and concluded the statute does not prohibit federal jurisdiction as long as the complaint seeks an injunction and not revision of either his sentence or money damages.

As the dissent points out, using 1983 avoids the limitations of 28 U.S.C. 2254 and allows attorney fees as well. The dissenters (there are several) focus on the underlying issue of federalism because of repeated attempts by some 9th Circuit judges to continue overruling state supreme court cases on habeas corpus   To avoid the limitations imposed by 2254, completely absent from this civil case, (and to finesse the death penalty in other cases), counsel for Thornton decided to try another route.  Section 1983 avoids federal limitations imposed on federal courts by the Supreme Court on state parole cases, the Fourth Amendment, and the requirement of state exhaustion before an inmate applies for a federal remedy.

Cert. in Thornton (absent rehearing) should be a certainty. This case was decided in July 2013 and amended in February 2014.The Governor has taken no action to file cert.in the Supreme Court. The Attorney General has done nothing either.
































Castellanos v. Small, 766 F.3d 1137 (C.A.9 2014)

Castellanos is a case of overwhelming guilt, and the jury convicted him of second degree murder.  No jury would have found him “not guilty.” The facts are simple. In the presence of witnesses, the defendant (a gang member who had just been released from jail) shot a young boy in the head because he would not join a gang.  The trial was straightforward and nothing suggests the jury believed the defense of an “accidental shooting.” The trial record supports the sufficiency of evidence. Of course defense counsel filed a Batson motion on grounds the prosecutor excused an Hispanic juror – yet he had accepted 8 Hispanic jurors. The trial judge denied the motion.

On appeal in state court, Castellanos asserted no significant evidential or instructional error but argued his Batson motion; Peo. v. Castellanos, 2007 WL 2660214 (Non.Pub.). The California Court of Appeal disposed of the motion in a few paragraphs citing a California Supreme Court case deferring to the experience of trial judges and their familiarity with voir dire.  The California Supreme Court denied review.

On federal habeas in district court the judge denied the petition, and Castellanos appealed. The 9th Circuit panel, none of whom had trial experience, reviewed the same record as the state court trial judge, the California Court of Appeal, the California Supreme Court (denied review) and the district court judge.  The panel spent endless pages reviewing the cold voir dire record and concluded the prosecutor had excused a potential Hispanic juror on racial grounds despite his explanation of the reasons for the challenge to the judge who supervised the trial.

That a federal court would grant habeas corpus on collateral review without any deference to the state court, as required by the Supreme Court, and reverse the judgment on Batson grounds is inconceivable and a manifest injustice. This decision parallels Rice v. Collins, another 9th Circuit Batson reversal by the Supreme Court who correctly said: “The 9th Circuit simply substituted its judgment.”

The 9th Circuit is so fixated on race that it impairs their judgment. (Not only in criminal cases but immigration as well.) Castellanos was tried in 2005, nine years ago.  What are the chances of retrial by the prosecution after this length of time?  Ordering reversal of a murder case because one juror was allegedly wrongfully excused, despite the trial court, state court Justices on the Court of Appeal, and Supreme Court to the contrary, is irresponsible. The Supreme Court insists federal appellate judges respect and defer to state court judgments on habeas corpus.

Rehearing or cert.?  If cert., the Supreme Court should reverse the 9th Circuit panel decision as an “abuse of appellate discretion,” a term used by the Justices in a 9th Circuit decision reversed during the last term. And this habeas corpus petition -a collateral review entitled to double deference – overruling facts found by the trial judge and normally accepted on appeal, invites Congressional review to tighten AEDPA or eliminate federal review of state court decisions.

Note: The 9th Circuit panel used the so called “comparative analysis” system of matching questions and answers of jurors.  Worthless. Nothing in the “comparative analysis” includes the voice, demeanor, conduct, or body language of a juror.  Every  trial lawyer knows that. The 9th Circuit panel doesn’t.


Grenning v. Stout, 739 F.3d 1235 (C.A.9 2014)

Prisoners’ Rights
Noted for its solicitude to prison inmates convicted of murder, robbery, burglary, assault, rape, arson, and sex crimes, this 9th Circuit opinion in Grenning is an example of one of the most frivolous cases on prisoner’s rights ever written. An inmate with a record of violence and numerous psychiatric reports complained he could  not sleep at night because the cell lights were never turned “off.” The Corrections Officer explained the need for constant lighting because all the inmates in this section were violent and housed in single cells to facilitate observation.  A lighting expert testified extensively, and the 9th Circuit panel cross examined him as reflected in its decision.  Inordinate pages of “lighting brightness” permeated the written 2-1 opinion.The court sent the case back to the district court to do something.
Understandably, the dissent suggests the prison officials should run the prison.

U.S. v. Rodriguez, 766 F.3d 970 (C.A. 9 (2014.  An expert witness describes prison life and the dangers posed to Correction Officers and inmates. explains how the Mexican Mafia runs prison life and gangs in general.  In Rodriguez, multiple gang members entered the cell of an inmate and shanked him with over 40 puncture  wounds.  The defense contended medical treatment of the victim was negligently performed, and the wounds were not the proximate cause of death. The 9th Circuit panel did a good job in dismissing this absurd contention.

The court also reviews several other issues involving evidence of gang participation; medical negligence; Brady; informants, but

Having decided to run California prisons (Plata v. Brown) the 9th Circuit now reviews Arizona state prison conditions and approves a class action for all inmates, regardless of their physical condition. The complaint alleges “deliberate indifference” of medical, dental and prison conditions affecting inmates.  The district judge issued an injunction, and the 9th Circuit panel approved the interlocutory order for class certification; Persons v. Ryan, 754 F.3d 657 (9th Cir. 2014).   

Plata v. Brown, 754 F.3d1070 (9th Cir. 2014)
As noted earlier in this case, Congress enacted severe restrictions on prisoner litigation, in part requiring any court order be limited in a specific time when the state moves to dismiss by contending the conditions alleged in the complaint had been accomplished.  The State moved for dismissal but the court ordered 120 days for discovery in order to allow plaintiffs to respond.  According to the 9th Circuit on appeal by the State from the district court order, the panel held this continuance did not violate the language of the federal statute.

Nordstrom v. Ryan, 2014 WL 3893088 C.A.9 (2014)
Arizona prison regulations allow a correction officer to read the contents of a prisoner’s ;legal mail to his lawyer to determine whether it contains contraband or other illicit conduct. The guard read Nordstrom’s letter over his objection.  The majority of the panel and the dissent wrangled over  how you could read the letter to determine contraband or illicit conduct without reading it.  They play a word game.

Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014) Reversed: Ryan v. Wood, 2014 WL 3600362 (U.S.)

A 9th Circuit panel, desperate to enjoin a State of Arizona execution of inmate Wood, wrote one of the highest forms of appellate injustice ever written.  The panel could find no judicial error in the trial, and an Arizona court had confirmed the death warrant. A few days before the date of execution, Wood sought a preliminary injunction from the district court.  Through his counsel, Wood contended he was entitled to the name of the drug manufacturer,the name of the drug administered in the execution, and the credentials of the administrators. The state AG provided counsel with some of the requests but not all. Defense counsel filed the petition requesting the injunction. Denied.
On appeal to the 9th Circuit, the panel granted the injunction – on grounds of the First Amendment. Unable to cite a single case as precedent, the panel tried to analyze on related grounds applicable to executions. The panel subsequently issued a stay.
In this 2-1 decision by the majority judge, who regularly reverses death penalty cases, the dissenting judge rebuts this “novel” decision unsupported by legal or historical evidence. It took the Supreme Court 24 hours to unanimously vacate the panel stay and without any supporting justification; Ryan v. Wood, 2014 WL 3600362 The Supreme Court reversal explains everything.